Should Parental Visa Status Count?

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The Washington Postreported last week that three public institutions in Virginia -- the College of William & Mary, Christopher Newport University and Old Dominion University -- are asking some applicants for information on the visa and immigration status of their parents. The issue raises questions, because these applicants have submitted evidence that they are legal residents of the United States, and that evidence hasn't been challenged.

The universities say they are acting consistent with state law, and there is a relevant Virginia statute that they can point to. However, there are provisions that also allow the universities to use other ways to determine a student's residency, which can be important for admission, eligibility for in-state tuition rates and eligibility for financial aid.

Lee Andes, assistant director of financial aid at the State Council of Higher Education for Virginia, said that the key part of Virginia law states, "The domicile of a dependent student shall be rebuttably presumed to be the domicile of the parent or legal guardian." And within that sentence, the key word may be "rebuttably," he said.

He said that just because a university may first think to check on the immigration status of an applicant's parents doesn't mean it has to follow through on such an inquiry -- and that there are cases where that may not be a requirement at all.

A Virginia attorney general's opinion in 2008, he said, found that in the case of U.S. citizens with undocumented parents, it was "appropriate" to consider that the presumption can be "rebutted." In these cases, the attorney general said, a U.S. citizen residing in Virginia should not be denied in-state tuition or other benefits on the basis of the legal status of the parents.

While some (but not all) Virginia colleges are making inquiries about parental residency status, legal challenges are forcing others to back down from such policies.

The city of Washington, for example, has a program called the District of Columbia Tuition Assistance Grant, which provides D.C. residents up to $10,000 per year to pay for attending public colleges and universities outside the District of Columbia.

As originally set up, the eligibility was based on residency in D.C. and was denied to some children of immigrant parents -- regardless of the legal status of the otherwise eligible children.

The Mexican American Legal Defense and Educational Fund last year sued D.C. on behalf of Natalia Villalobos, a lifelong resident of D.C. who was denied eligibility solely on the basis of her mother's immigration status. D.C. agreed to change the rules of the program to get MALDEF to drop the suit.

Jay Matthews, a Post columnist who has written about the issue, recently wrote of the Virginia colleges that they should note that others are losing battles over these issues in court.

"It sounds almost as if the universities are pulling this stunt as a test of intelligence and character," wrote Matthews. "Do they want only students on their campuses tough and savvy enough to get a lawyer when something goes wrong?"